- 69 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

State of Nebraska, appellee, v.

Lucio P. Munoz, appe

___ N.W.2d ___

Filed May 10, 2019. No. S-18-050.

1. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

2. Effectiveness of Counsel: Appeal and Error. Assignments of error on 

direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance.

3. Appeal and Error. An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but plainly evident 

from the record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process.

4. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal 

is a question of law. In reviewing claims of ineffective assistance of 

counsel on direct appeal, an appellate court decides only whether the 

undisputed facts contained within the record are sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel’s 

alleged deficient performance.

5. Appeal and Error. In the absence of plain error, where an issue is 

raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never 

presented and submitted to it for disposition.

6. Trial: Prosecuting Attorneys. When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s acts constitute misconduct.

7. ____: ____. A prosecutor is entitled to draw inferences from the evidence in presenting his or her case, and such inferences generally do not 

amount to prosecutorial misconduct.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/12/2019 09:07 AM CDT
- 70 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

8. ____: ____. A prosecutor’s conduct that does not mislead and unduly 

influence the jury is not misconduct.

9. Rules of Evidence: Intent. The purpose of Neb. Rev. Stat. § 27-513(2) 

(Reissue 2016) is to prevent the jury from drawing an unfavorable inference from a witness’ assertion of a privilege.

10. Effectiveness of Counsel: Postconviction: Records: Appeal and 

Error. When a defendant’s trial counsel is different from his or her 

counsel on direct appeal, the defendant must raise on direct appeal any 

issue of trial counsel’s ineffective performance which is known to the 

defendant or is apparent from the record, otherwise, the issue will be 

procedurally barred in a subsequent postconviction proceeding.

11. Effectiveness of Counsel: Records: Appeal and Error. The fact that 

an ineffective assistance of counsel claim is raised on direct appeal does 

not necessarily mean that it can be resolved. The determining factor is 

whether the record is sufficient to adequately review the question.

12. ____: ____: ____. The record is sufficient if it establishes either that 

trial counsel’s performance was not deficient, that the appellant will not 

be able to establish prejudice, or that trial counsel’s actions could not be 

justified as a part of any plausible trial strategy.

13. Effectiveness of Counsel: Proof. Generally, to prevail on a claim of 

ineffective assistance of counsel under Strickland v. Washington, 466 

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must 

show that his or her counsel’s performance was deficient and that this 

deficient performance actually prejudiced the defendant’s defense.

14. ____: ____. To show that counsel’s performance was deficient, a defendant must show that counsel’s performance did not equal that of a lawyer 

with ordinary training and skill in criminal law.

15. Effectiveness of Counsel: Proof: Words and Phrases. To show prejudice, the defendant must demonstrate a reasonable probability that but 

for counsel’s deficient performance, the result of the proceeding would 

have been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

16. Trial: Effectiveness of Counsel: Prosecuting Attorneys: Appeal and 

Error. Determining whether defense counsel was ineffective in failing 

to object to prosecutorial misconduct requires an appellate court to first 

determine whether the petitioner has alleged any action or remarks that 

constituted prosecutorial misconduct.

17. Evidence. Evidence is relevant if it has any tendency to make the 

existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without 

the evidence.
- 71 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

18. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), relevant evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice.

19. Criminal Law: Evidence. The State is allowed to present a coherent 

picture of the facts of the crimes charged, and it may generally choose 

its evidence in so doing.

Appeal from the District Court for Scotts Bluff County: Le

P. Dobrovolny, Judge. Affirm

Kelly S. Breen, of Nebraska Commission on Public 

Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Cassel, J.

I. INTRODUCTION

In this direct appeal from criminal convictions, Lucio P. 

Munoz focuses on three incidents at trial: (1) a comment during the prosecutor’s opening statement about evidence not 

found, (2) a witness’ assertion of a testimonial privilege in 

the jury’s presence, and (3) expert testimony regarding blood 

spatter evidence. Because trial counsel did not object, Munoz 

alleges plain error and ineffective assistance of counsel. We 

find neither. The prosecutor’s statement was consistent with the 

evidence. The bill of exceptions does not show that the prosecutor knew the witness would assert a privilege. And the blood 

spatter evidence was neither irrelevant nor unfairly prejudicial. 

We affirm the district court’s judgment.

II. BACKGROUND

On Friday, December 30, 2016, at approximately 10 p.m., 

Munoz knocked on Trudy Ziegler’s door. He told her that his 

girlfriend, Melissa May, had been raped that morning by a 

tenant of the same apartment complex where they all lived. 
- 72 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

Ziegler told Munoz to call the police, and he did so from 

her apartment.

Just after 11 p.m., two police officers arrived at the apartment complex. Their body cameras recorded the interaction. 

Munoz told the officers that May had been raped. He allowed 

the officers into his apartment, where an intoxicated May was 

asleep on Munoz’ bed. After Munoz woke her, May told the 

officers that she did not know why they had been called and 

Munoz told her to “tell them the truth.” May did not wish to 

make a police report. One of the officers told Munoz that when 

May was sober, she could come talk to the police. Munoz 

replied that she was not going to do so. He added, “But something’s gonna happen, I know.”

An upset Munoz returned to Ziegler’s apartment and said 

that May did not want to press charges. He asked “what do I do 

now,” and Ziegler told him “just love her all the more.”

At approximately 2 a.m. on December 31, 2016, Munoz 

called his son, Martin Brady. Munoz told Brady that he “did 

something . . . bad” and that he wanted to kill himself. Brady’s 

girlfriend called the police to check on Munoz.

The same two officers returned to Munoz’ apartment shortly 

after 3 a.m. Again, their body cameras recorded the interaction. 

Munoz said that he was feeling bad “because of what happened.” He allowed the officers into his apartment. The door 

to his bedroom was closed, and he told the officers that his 

girlfriend had gone home. Munoz agreed to go to a hospital to 

speak with someone. He locked the deadbolt on his apartment 

door, and one of the officers drove him to the hospital.

At approximately 8 a.m., Brady received a call from a doctor for Munoz “to get out of the . . . hospital.” Brady and his 

girlfriend picked up Munoz and took him to Brady’s house. 

Munoz stayed at Brady’s house the rest of the morning, and at 

some point, arrangements were made for Munoz to leave town. 

Brady explained that Munoz had talked about seeing family 

because it had “been awhile” and that Munoz had brothers in 

Texas and Illinois.
- 73 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

A friend of Munoz agreed to take Munoz to Illinois to visit 

one of his brothers. The friend asked if Munoz wanted to travel 

the next day, but Munoz said he wanted a ride as soon as possible. So, the friend testified, they “gassed up, and headed out.” 

According to the friend, Munoz had no luggage or other items 

and he left Munoz in Illinois with Munoz’ brother.

Meanwhile, Ziegler did not see Munoz or May on Saturday, 

which she said was unusual. On Sunday and Monday, Ziegler 

knocked on Munoz’ door, but there was no answer. On Tuesday, 

January 3, 2017, Ziegler asked the property manager to check 

on May. Using a master key to unlock the deadbolt, the property manager entered Munoz’ apartment. She opened the bedroom door and discovered May, deceased, on the bed.

An autopsy revealed that May had suffered 37 stab wounds, 

and the cause of death was determined to be multiple stab 

wounds. The turquoise sweatshirt on May’s body appeared to 

match her top as depicted on the December 30, 2016, body 

camera footage. Evidence for a sexual assault kit was collected, and it showed no DNA profile other than that of May.

Munoz’ brother in Texas began searching for Munoz due to 

a concern that “something had happened . . . where he live[s].” 

After making telephone calls, he discovered that Munoz was in 

Illinois. Munoz asked his brother to forgive him, but did not 

say for what. During later conversations, Munoz “said that he 

was going to die in prison.”

Officers with the Scotts Bluff County sheriff’s office flew 

to Illinois to transport Munoz back to Scotts Bluff County. 

As they were going through the airport to catch a connecting flight, they heard someone playing a piano and Munoz 

said “they are playing my death song” and “I’m going to 

get the death penalty.” While waiting for a flight, Munoz 

asked the other officer questions about Nebraska’s death 

penalty, including “if it was voted back in” and the method 

of execution.

The State charged Munoz with first degree murder and 

use of a deadly weapon to commit a felony, and the court 
- 74 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

conducted a jury trial. Additional background concerning 

events occurring during trial will be set forth in the analysis section.

The jury returned verdicts of guilty on both counts. The 

court imposed a sentence of life imprisonment for the murder 

conviction and of 20 to 40 years’ imprisonment for the use of a 

weapon conviction. This timely appeal followed.

III. ASSIGNMENTS OF ERROR

Munoz’ five assignments of error fall into two general categories. He asserts as plain error that prosecutorial misconduct 

occurred during opening statements and that the court erred by 

permitting Brady to invoke his Fifth Amendment privilege in 

the presence of the jury.

Munoz assigns that his trial counsel provided ineffective 

assistance by failing to object to the prosecutor’s opening 

statement, failing to demand compliance with Neb. Evid. R. 

513(2), Neb. Rev. Stat. § 27-513(2) (Reissue 2016), and failing 

to challenge blood spatter evidence. 

[1,2] The argument section of Munoz’ brief contains a 

subsection concerning additional instances of alleged ineffective assistance of counsel, but these issues were not assigned 

as error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting 

the error to be considered by an appellate court.1 Moreover, 

assignments of error on direct appeal regarding ineffective 

assistance of trial counsel must specifically allege deficient 

performance.2 We do not consider these additional unassigned matters.

IV. STANDARD OF REVIEW

[3] An appellate court may find plain error on appeal when 

an error unasserted or uncomplained of at trial, but plainly 

1 State v. Sundquist, 301 Neb. 1006, 921 N.W.2d 131 (2019).

2 See State v. Mrza, 302 Neb. 931, ___ N.W.2d ___ (2019).
- 75 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the 

integrity, reputation, and fairness of the judicial process.3

[4] Whether a claim of ineffective assistance of trial counsel 

may be determined on direct appeal is a question of law. In 

reviewing claims of ineffective assistance of counsel on direct 

appeal, an appellate court decides only whether the undisputed 

facts contained within the record are sufficient to conclusively 

determine whether counsel did or did not provide effective 

assistance and whether the defendant was or was not prejudiced by counsel’s alleged deficient performance.4

V. ANALYSIS

1. Plain Er

[5] Munoz presents two issues as a matter of plain error, 

because he did not object or otherwise preserve the issue for 

appellate review. In the absence of plain error, where an issue 

is raised for the first time in an appellate court, it will be 

disregarded inasmuch as a lower court cannot commit error 

in resolving an issue never presented and submitted to it for 

disposition.5

(a) Prosecutorial Misconduct

Munoz contends that the following remarks by the prosecutor during his opening statement amounted to prosecutorial 

misconduct:

There is some DNA evidence in this case and I think 

I told some of you that the last trial we had. The murder 

weapon was not found. His clothing with . . . May’s blood 

was not found. Of course, we have about [a] four hour 

time gap from the time the police were first there and the 

time — the second they were there. And, the clothes he 

3 Id.

4 Id.

5 State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).
- 76 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

has when he is arrested in Illinois and are sent back here 

are not the clothes he left with. Those were changed.

Munoz claims the above statements are problematic, because 

there was no evidence that Munoz hid or destroyed “blood” 

evidence or that May’s blood was found on any article of 

clothing belonging to Munoz.

We begin with the observation that the jury was informed 

that opening statements are not evidence. The prosecutor told 

the jury, “This is opening statement, what we say right now is 

not evidence.” And although the court’s preliminary instructions were not memorialized in the record, Munoz’ counsel stated:

As [the judge] indicated in the preliminary instruction 

that he gave to you, we talked about opening statements. 

He indicated that the statements that the attorneys get to 

make at this time should not be considered as evidence. 

So anything that [the prosecutor] told you just a few minutes ago should not be considered as evidence and don’t 

consider anything that I’m going to tell you is evidence 

as well.

[6-8] When considering a claim of prosecutorial misconduct, an appellate court first considers whether the prosecutor’s acts constitute misconduct.6

 A prosecutor is entitled to draw inferences from the evidence in presenting his 

or her case, and such inferences generally do not amount 

to prosecutorial misconduct.7 And a prosecutor’s conduct 

that does not mislead and unduly influence the jury is not 

misconduct.8

The prosecutor’s opening statement did not constitute prosecutorial misconduct. The evidence at trial was consistent 

with the prosecutor’s opening statement: Neither the murder 

6 State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

7 State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).

8 State v. Swindle, supra note 6.
- 77 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

weapon nor any of Munoz’ clothing containing May’s blood 

was found, and Munoz was wearing different clothing at the 

time of his arrest than the clothing he was wearing when he 

left town. Because there was no prosecutorial misconduct, it 

follows that there can be no plain error.

(b) Assertion of Privilege

Munoz also claims that plain error occurred when Brady 

invoked his Fifth Amendment privilege in the jury’s presence. 

After Brady identified Munoz in the courtroom, the following 

colloquy occurred:

[Prosecutor:] Okay. Do you then recall having a conversation with him in the early [sic] December 31st 

of 2016?

[Brady:] I would like to invoke my Fifth Amendment 

rights.

[Prosecutor]: Okay. Judge, I’m going to go ahead and 

offer immunity.

THE COURT: All right. Sir, the County Attorney has 

heard your exercise of your Fifth Amendment rights under 

the United States Constitution. Under Nebraska law if the 

County Attorney indicates that immunity will be granted 

you for anything you may say here in the courtroom, you 

are required to testify. So notwithstanding your exercise 

of your Fifth Amendment rights, because the County 

Attorney has extended you immunity, I’m ordering you to 

go ahead and answer his questions.

[Brady]: Okay.

Brady then proceeded to answer all questions posed to him.

[9] Munoz argues that plain error occurred when Brady was 

permitted to invoke his Fifth Amendment privilege in the presence of the jury. He relies on § 27-513(2), which states that 

“[i]n jury cases, proceedings shall be conducted, to the extent 

practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.” We have explained 
- 78 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

that the purpose of § 27-513(2) is to prevent the jury from 

drawing an unfavorable inference from a witness’ assertion of 

a privilege.9

 We recently addressed the invocation of a privilege in the 

jury’s presence, but the circumstances here are distinguishable. 

In State v. Draper,

10 the trial court permitted the defendant’s 

wife to assert her privilege against self-incrimination in the 

presence of the jury. We stated: “[A]ll parties knew that she 

would, before being granted immunity, invoke her privilege 

against self-incrimination. And the record fails to establish 

any basis justifying the assertion of that privilege in front 

of the jury.”11 In contrast, the bill of exceptions here does 

not indicate that any party or the court knew in advance that 

Brady would invoke his Fifth Amendment privilege against 

self-incrimination.

Under the circumstances here, error is not plainly evident 

from the record. Munoz argues: “Clearly the prosecutor anticipated that Brady would invoke his 5th Amendment right not 

to testify during his direct examination. Otherwise he would 

not have been prepared to immediately offer the witness 

immunity.”12 But it is just as conceivable that the criminal 

investigation had revealed Brady’s involvement was minimal 

and not worthy of prosecution, such that the prosecutor had 

no hesitation about offering immunity.13 The bill of exceptions does not contain evidence showing that the parties or the 

court knew Brady would invoke his privilege. And, after being 

given immunity, Brady testified and was subject to crossexamination. We find no plain error.

9 See State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).

10 Id.

11 Id. at 789, 857 N.W.2d at 344.

12 Brief for appellant at 13.

13 See Neb. Rev. Stat. § 29-2011.02 (Reissue 2016).
- 79 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

2. Ineffective Assi

of Counse

Munoz’ other assignments of error allege that his trial counsel provided ineffective assistance. After setting forth general 

principles, we consider the specific allegations of ineffective 

assistance.

(a) General Principles

[10-12] Munoz has different counsel on direct appeal. When 

a defendant’s trial counsel is different from his or her counsel 

on direct appeal, the defendant must raise on direct appeal 

any issue of trial counsel’s ineffective performance which 

is known to the defendant or is apparent from the record, 

otherwise, the issue will be procedurally barred in a subsequent postconviction proceeding.14 The fact that an ineffective 

assistance of counsel claim is raised on direct appeal does not 

necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the 

question.15 The record is sufficient if it establishes either that 

trial counsel’s performance was not deficient, that the appellant will not be able to establish prejudice, or that trial counsel’s actions could not be justified as a part of any plausible 

trial strategy.16

[13-15] Generally, to prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

17 the defendant 

must show that his or her counsel’s performance was deficient 

and that this deficient performance actually prejudiced the 

14 State v. Mrza, supra note 2.

15 Id.

16 See State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018), disapproved 

on other grounds, State v. Avina-Murillo, 301 Neb. 185, 917 N.W.2d 865 

(2018).

17 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).
- 80 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

defendant’s defense.18 To show that counsel’s performance was 

deficient, a defendant must show that counsel’s performance 

did not equal that of a lawyer with ordinary training and 

skill in criminal law.19 To show prejudice, the defendant must 

demonstrate a reasonable probability that but for counsel’s 

deficient performance, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.20

(b) Opening Statement

[16] Munoz argues that his trial counsel was ineffective 

in failing to object to the prosecutor’s opening statement. 

Determining whether defense counsel was ineffective in failing to object to prosecutorial misconduct requires an appellate 

court to first determine whether the petitioner has alleged any 

action or remarks that constituted prosecutorial misconduct.21

As we determined above, the prosecutor’s opening statement 

did not amount to prosecutorial misconduct. Because there 

was no basis to object, Munoz’ counsel did not perform deficiently in failing to object.

(c) Failing to Demand Compliance 

With § 27-513

Munoz next contends that counsel was ineffective for failing 

to demand compliance with § 27-513. As noted above, the bill 

of exceptions does not reveal that any party knew Brady would 

assert his Fifth Amendment privilege, and Munoz does not cite 

to any evidence that such knowledge existed.

Even if it were known that Brady would invoke the Fifth 

Amendment, Munoz cannot show prejudice due to counsel’s 

18 State v. Mrza, supra note 2.

19 Id.

20 Id.

21 State v. Taylor, supra note 7.
- 81 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

failure to object and demand compliance with § 27-513. There 

is no indication that by calling Brady as a witness, the prosecutor was trying to build a case out of inferences from use of a 

testimonial privilege. Further, we are not presented with the 

situation where “‘inferences from a witness’ refusal to answer 

added critical weight to the prosecution’s case in a form not 

subject to cross-examination.’”22 Because Brady testified and 

was subject to cross-examination, Munoz cannot demonstrate a 

reasonable probability that the result of the proceeding would 

have been different if Brady had invoked the privilege outside 

of the jury’s presence.

(d) Blood Spatter Evidence

Finally, Munoz argues that his trial counsel was ineffective 

by failing to challenge blood spatter evidence as irrelevant and 

unfairly prejudicial. We disagree.

The State’s blood spatter expert visited the scene and documented bloodstain patterns. Based on the blood evidence, 

the expert gave “brief snapshots of what happened at different times”:

So there were some impact patterns and castoff near the 

head of the bed and it’s my opinion that the victim was 

laying there wrapped up in a blanket on top of the blankets underneath her, basically, the black plaid blankets 

and the blankets underneath when this attack started. 

There were enough spatter patterns to indicate that some 

liquid blood had been shed while she was in that position, and that something impacted into it. I wasn’t able 

to determine what. Sometime during the attack she had 

turned around toward with her head toward the foot 

of the bed, her feet toward the head of the bed. And, 

after she was stabbed she had somehow was laying, as 

I mentioned before, laying head first on top of the white 

22 State v. Draper, supra note 9, 289 Neb. at 786, 857 N.W.2d at 342.
- 82 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

comforter, her left arm down creating that pooling off of 

the side of the bed. Based on the position of her right arm 

and based on the lack of blood around her right arm, . . . 

it’s my opinion that somebody took her right arm and 

pulled her back up onto the bed. I don’t know if she was 

alive at that time, it’s possible. If she was in that final 

position when the spatter around her was created, which 

led me to believe it’s probably expectorate, but could, 

also, be spatter patterns from something impacting the 

liquid blood on her. When she was in this final position 

somebody covered her up within five to 30 minutes after 

her blood was deposited based on the (inaudible) on her 

hip. Somebody with blood on them, and I can’t say how 

much, but some liquid blood on them moved around to 

the foot of that bed creating those transfer patterns. And, 

after it was all done, whoever it was, walked into the 

bathroom, probably washed off their hands, washed off 

the weapon, creating the diluted blood around the rim 

of the sink.

Munoz first argues that the evidence was irrelevant. Evidence 

which is not relevant is inadmissible.23 Munoz highlights that 

the blood spatter expert did not identify any evidentiary link 

between the blood evidence and any particular suspect nor any 

particular object associated with a suspect.

[17] Evidence is relevant if it has “any tendency to make the 

existence of any fact that is of consequence to the determination of the action more probable or less probable than it would 

be without the evidence.”24 Relevancy requires only that the 

probative value be something more than nothing.25

The blood spatter evidence satisfied the low bar for establishing relevancy. It showed the brutal nature of May’s death, 

23 Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016).

24 Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016).

25 State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).
- 83 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

which was consistent with the State’s theory that Munoz 

believed May was “cheating on” him and “react[ed] violently.” 

This alone satisfies the minimal requirement that the probative value of the evidence be something more than nothing. 

Because a relevancy objection would have been futile, counsel did not perform deficiently by failing to object on relevancy grounds.

Munoz also claims that the blood spatter evidence was 

unfairly prejudicial. He points out that the blood spatter expert 

provided testimony regarding photographs that she used in her 

report. Munoz claims that the direct examination of the expert 

“was merely an opportunity for the State to overly emphasize the horrific and brutal nature of an unidentified assailant’s attack.”26

[18] Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of 

unfair prejudice. Unfair prejudice means an undue tendency 

to suggest a decision based on an improper basis.27 It speaks 

to the capacity of some concededly relevant evidence to lure 

the fact finder into declaring guilt on a ground different from 

proof specific to the offense charged, commonly on an emotional basis.28

[19] Gruesome crimes produce gruesome photographs and 

evidence.29 But the State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally 

choose its evidence in so doing.30 Using the blood evidence 

found at the crime scene, the blood spatter expert helped 

explain what happened during the attack on May. Although 

26 Brief for appellant at 15.

27 State v. Brown, supra note 25.

28 Id.

29 See State v. Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).

30 State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012).
- 84 -

Nebraska Supreme Court Advance S

303 Nebraska Report

STATE v. MUNOZ

Cite as 303 Neb. 69

the expert could not identify May’s killer, we do not believe 

that the district court would have excluded the evidence on the 

basis that the probative value of the expert’s testimony was 

substantially outweighed by the danger of unfair prejudice. 

Accordingly, Munoz’ trial counsel did not perform deficiently 

by failing to object.

VI. CONCLUSION

We find no plain error with regard to the prosecutor’s opening statement or the invocation of Fifth Amendment privilege 

in the jury’s presence. With regard to Munoz’ claims of ineffective assistance of trial counsel, we conclude that the record 

on appeal shows the claims to be without merit. We therefore 

affirm the judgment of the district court.

Affirmed